Monday, February 06, 2006

Gosh, Maia of Capitalism Bad; Tree Pretty posts some excellent, thought-provoking stuff. She challenges me (inadvertently) to be a better feminist and I love that - it makes the synapses fire and reading her writing often results in connections clicking into places between random things stored away forever in my skull.

Recently she posted about the case of Ranui Biddle, who was recently found not guilty of raping a woman who had agreed to Biddle sleeping in her bed. According to the jury, and the judge, this woman's agreement to Biddle sharing her sheets was also an agreement to sex, despite the fact that she said no.

Well that's handy to be aware of. I shall be sure to write that down somewhere so that I won't forget. Maybe a tattoo on my hand would be a good place: "Span, Don't Forget, Bed Sharing = Consent to Sex." To be sisterly, I should also go around and tattoo this message (sans the span) on the hand of every woman I encounter, presumably from a young age; shouldn't every woman know about this new law?

Seriously though, this judgement is seriously disturbing. As I've commented on Maia's blog, this kind of event always prompts me to think about when it is too late for a woman to say no.

Is it:

a) before the dateb) at the start of the datec) before the man pays (if he pays) for the meal/movie ticket/whateverd) before she shares transport with the mane) before she invites him in, or enters his abodef) before they kissg) after they kiss but before anything elseh) before clothing is removedi) before they are in bedj) before penetrationk) during penetration

According to the judge and jury in the Biddle case, it's at point i (before they are in bed). And that, dear readers, is a total and utter crock.

At any of the above points if one of the partners says no the sex should stop. It might be hard, it might be frustrating, but it should stop. No means no. It means no further. It means stop.

In fact, I reflect on the fact that No is often one of the earliest words that people learn. Those working with small children will know how irritating it is when they learn No, and its power. There is no ignorance in our society when it comes to the meaning, and intent, of someone who says no. There really are few words so clear, especially in this situation, as NO.

(All of this just underscores the point I made a few months back in my post saying yes. Wouldn't it be better to have a policy of If In Doubt Find Out - actually talk about sex, communicate openly and honestly, and if you're not sure if your partner is into it, ask.)

I want to take the Biddle case a bit further. Imagine that we are talking not about sex but about dancing. Pretend, if you will, that you are the one who doesn't wish to dance, but this doesn't occur to you until you are actually on the floor and being twirled around, or perhaps you change your mind. You can still say no at this point, with no greater penalty than annoying your partner. You can walk away at any point.

Sex should be the same - and no one should be in the least interested in continuing sex (or dancing) with a partner who is not keen.

The question that should be asked is whether these factors should be taken into consideration at rape trials - does inviting a man into your bed make him any less guilty of forcing you to have intercourse with him??

Its very frustrating when you ask someone to stop and they try to continue to take advantage of you. Alcohol can also be a confounding factor. NO means NO.

In this case however I had thought sex had begun and then the woman asked him to stop, which he did. Maybe I heard incorrectly. I find it hard to believe that a jury would unanimously acquit without some reason, especially given the deep disdain toward rape and rapists in our society.

It would be prudent to examine the facts of the case beyond a brief news piece before making a judgement. Some people are innocent of the charges laid against them.

Your comments are exactly right, I find it so depressing that these comments have to be repeated. Not just because it boggles my mind that people don't agree with them, but also because I get so creeped out by the realisation there are people out there who want to have sex with someone who doesn't want to have sex with them.

Woman says, "please stay the night, in my bed, but no sex thanks". Man says "sweet as". Both go to sleep. Woman is woken up by man attempting to have sex with her. She says "WTF? I said no and I still mean no". He says "oh, ok, my mistake," and stops.

In my books that is still rape - she had clearly already said no. He went ahead and started anyway. The fact that he does stop when asked the second time does not negate the fact that he did actually start sex when she had said no.

Does the man have to "finish the job" for it to be rape? I don't think the issue is whether the man has an orgasm - the issue is whether the woman has been violated.

Rape is typically defined as the vaginal, anal or more recently in some areas oral penile penetration without consent and to my knowledge no country has laws that require the male participant(s) to orgasm for it 'to count' while non penile penetration and in some countries oral sex fall under the broader sexual/indecent assault definition.

I think you've covered the wider issues of the case itself quite nicely here but I'm also concerned by the last charge of kidnapping, if the jury here accepted the possibility that Biddle believed that the the woman here had genuinely consented to intercourse with him, why did he proceed to block her exit from the room? If at that point Biddle still had no idea of any negative reprecussions that could result from his actions what could have possessed him to deprive her of her liberty?

How about this scenario for you unreconstructed feminists? Man and woman start having penetrative sex. Woman decides that she doesn't want to continue. Woman indicates that she no longer consents. Man remains in a state of penetration for the millisecond it takes for her communication to reach his ears and be processed by his brain. Instant rape. And impossible for man to refute if woman decides to claim this after the fact.

Yeeeeeeeeeesss, but it's only stupid because there are men who don't respect no.

It's about trust. Most women do know that it's really stupid to share a bed with someone you don't trust. But most women who are raped also know their rapist, and I would be prepared to lay money that many of them trusted their rapist before he raped them.

justin I bet you $50 that no man has been convicted anywhere in the world on those facts.

Span I think your example is rape, whatever circumstances the bed sharing is happening under. Waking someone up in a pleasant way is one thing; using their sleeping body as an object is quite another. If someone's not awake enought that you know they want to be penetrated then it's rape.

Firstly no doubt that being invited into a bed is not automatic acceptance for sex. I've been in a situation where a girl and I checked into a hotel for the purpose of sex but then in bed she changed her mind. Naturally I respected that and we are still friends to this day.

In terms of this case though the issue is proof beyond reasonable doubt. If you have allowed someone you know has made a bet that he can have sex with you into your bed, then that makes it harder to prove rape beyond reasonable doubt.

And in terms of general safety, I think one can advise people to act safe without being seen to blame the victim. As an example if I don't want to get beaten up I'm probably best not to walk through certain neighbourhoods at 4 am by myself. Likewise if you don't want to have sex with a guy it is probably best not to invite him into your bed unless you are sure he has no designs on you. There is a difference between letting a friend of the opposite gender crash in your bed and taking home some guy you have been making out with in a night club.

Again not to say that this excuses a man who does not accept no when he hears it, but to recognise that some situations are best avoided, just a sone avoids walking home through certain neighbourhoods.

I shouldn't really comment because I've never been put to this test, and I do know that expecting anything very useful from my brain at that point is a lost cause.

But I'd expect a jury to apply a pretty high bar for the excuse of "confused over mixed messages" to jump over. The guys whose lawyers pull that defence knew damn well they weren't welcome, they just didn't give a shit and now they'd prefer not to go to jail for it. A jury should be tending towards the approach of "Gee that's too bad matey."

"defence counsel Michael Knowles pointed to what he called mixed messages from her that could have encouraged Biddle to think she might have been keen for a relationship."

... so let's just clarify things here: relationships = sex now? Jesus H. Christ on a push bike. I've been under a terrible misapprehension all this time.

Analogy time. A friend comes over to my place while I am alone. In the past I've let him borrow my DVD player for a limited time. I've given the impression in the past that one day I might give him my DVD player. This night, after we've been watching several DVDs, he decides to take it. I tell him not to take it several times, but he ignores me, and goes so far as to prevent my leaving my house or calling the police.

Since we are alone, there is no corroborating evidence - the DVD player is gone but he claims that I willingly gave it to him as a gift at the time. But, you know, my mixed messages might have confused him.

So, how many juries in the land wouldn't convict in this circumstance? Or would my history of prolifigate gift-giving in the past be used against me?

I would like to think that this was a case decided on the facts, but I have a horrible idea that if might be some people still get confused about the difference between yes and no.

What about being pressured to have sex? I think that's a more common experience shared by both males and females. Sometimes men can be very manipulative - should they be prosecuted? (I am just asking a very provocative question and don't really have an opinion either way)

Being pressured is difficult - I tend to think persuasion and coercion are quite different, but pressure is that grey area in between - are you really consenting (persuasion, ie changing your mind) or do you feel like you have to (pressure)? Depends on the circumstances I guess.

Thanks everyone for contributing your thoughts, I am finding this an interesting discussion.

I'd also like to draw your attention to Apathy Jack's post about this, there is a backtrack to it at the bottom of the post page (I hope that makes sense).

I'm even more depressed today, since I've been following the appeal of the pack rapists, where the defence are complaining they couldn't call the rape victim a slut, and the Crown appear to think the best response to that is "but she wasn't a slut".

More here: http://capitalismbad.blogspot.com/2006/02/rapist-watch.html

As for coercion there's actually two issues, what should the legal standard be, and what should the social standard. Now it seems to me, at the moment, that a lot of the time the legal standard is actually higher than the social standard, which is really fucked up.

I'm fine with setting the legal standard at consent. But I do believe that the social standard should be active participation. It shouldn't be OK to have sex with someone who doesn't want to, it shouldn't be OK to have sex with someone who isn't into it.

About Span

Span likes to think of herself as a mysterious interwab force for feminism and leftwingedness. However the truth is, as always, more mundane, what with blogging being the natural home of the frustrated and rant-inclined. Span is most certainly of their ilk. Sometimes she even talks about herself in the third person. We rest our case.

Sat. 21st Apr. 2007 - started this feature (hat tip to NZ Conservative), added to blogroll the following: Your Dirty Answer, the blonde canadian, Parrot on Policy, High Windows, and Short and Sweet Like Me